How ‘No-Deal Brexit' May Affect Maintenance For Expats

This article was authored by Alexandra Tribe and Sonny Patel.

The UK appears to be heading towards a cliff-edge no-deal Brexit. Or not. Until we have clarity about what will happen on 29 March, every industry and professional discipline must prepare for the possibility of an abrupt cutting of ties with the EU.

The Law Society and Resolution has produced a guidance note to family lawyers in England and Wales detailing practical recommendations in the event of a no deal exit from the EU.

From the perspective of English family lawyers who deal with international divorce cases for British expats, there is one particular implication of a no-deal Brexit which will shake-up the tactics of cross-jurisdiction divorce, particularly for clients living in non-EU countries. In short, a no-deal Brexit will eliminate the restriction on maintenance claims when jurisdiction is established based on the sole domicile of just one of the parties to a divorce. This statement needs context and explanation.

Jurisdiction for divorce

A court's ability to deal with a divorce is called its 'jurisdiction'. For British expatriates around the world, a divorce can usually proceed in England based on their 'domicile of origin'.

Choosing the appropriate jurisdiction for divorce is important. This is because the family courts in each country have developed different rules which guide their exercise of dividing assets and income during a divorce. This can affect the financial outcome of a divorce as a result.

The English courts have jurisdiction to deal with the divorce only where:

Both parties are habitually resident in England and Wales; or Either party was habitually resident in England and Wales, and one of them still resides there; or The respondent (the person whom the divorce is filed against) is habitually resident in England and Wales; or The petitioner (the person who filed the divorce) is habitually resident in England and Wales and has lived there for at least 1 year immediately before the petition is filed; or The petitioner is domiciled in England and Wales and has been residing in England and Wales for at least 6 months immediately before the petition is filed; or Both parties are domiciled in England and Wales; or If none of (1)-(6) above applies and no court of another EU State has jurisdiction, either party is domiciled in England and Wales on the date when the proceedings are begun. To establish jurisdiction, points (1) to (5) require physical presence in...